The Social Contract and the Illusion of Consent by Christian Edenfield

Although several arguments have been given on behalf of the state’s legitimacy, the defense most commonly encountered in reference to the United States of America is based on a concept known as the social contract.  According to proponents of this concept, the existence of a political state is justifiable because residents of the United States have voluntarily agreed to give up certain rights that were previously possessed in uneven quantities (such as one’s right to take whatever they could from the area around them and adequately protect) in exchange for a “blanket” of rights that is granted to all parties to the aforementioned agreement and protected by a neutral, third-party “arbitrator” (i.e. the state and its governing apparatus) whose powers exceed those possessed by any single person or group of people partaking in the agreement.  In order for a state to possess enough power to quell any disruptions perpetrated by parties who have agreed to the aforementioned contract (and are thus subject to its terms and conditions), each party to the contract has agreed to make contributions to the state’s well-being, as well as concessions that amplify the state’s political jurisdiction over each party to the contract.  Thus, the levying and collecting of taxes and the manufacturing and purchasing of weaponry for state use (which is often financed through the levying and collecting of taxes) are necessary functions that need to be carried out if the state is to become a capable arbitrator of disputes and if the contract agreed to by various parties is to be upheld.

That being said, the power that is most critical to ensuring an effective arbitrator of disputes (and as a result, the validity of the contract agreed to by residents of a certain area or territory) is a monopoly over the legitimate right to exercise deadly force.  Despite the uneasiness some might feel in allowing any institution (agreed to or otherwise) to act as the sole legitimate proprietor of life and death, proponents of this viewpoint argue that a state’s complete (or as close to complete as possible) control over the legitimate dispensation of deadly force in a given territory is the best (and perhaps only) way to ensure that parties who have agreed to the rules and guidelines contained within a given contract consistently adhere to those guidelines.  Furthermore, the presence of a state that possesses an overwhelming advantage (in terms of its ability to generate and utilize deadly force) against those who would challenge it more or less guarantees that those who have grievances with the political contract they have entered into can settle such grievances via agreed upon processes and procedures, which in turn more or less guarantees the continued protection of everyone else who has agreed to the same contract.  After all, the main reason people enter into political contracts with each other stems from the natural and unequally allocated capacity for force in human beings and the inconsistent manner in which such force is distributed from one human being to another during their all too frequent disputes.

Even though the social contract concept has functioned as one of the philosophical and ethical cornerstones of state legitimacy for over 350 years, it contains several flaws that proponents (at least to the best of my knowledge) have been unable to repair.  One of the most glaring flaws in the social contract is the idea of voluntary consent.  If social contracts can only be legitimately entered into upon the voluntary provision of a person’s consent, how can a social contract legitimately apply its terms and conditions to anyone except those who first agreed to it?  To put the question in a different (and more American) context, how can the social contract agreed upon and entered into by the founders of the United States (which physically manifests itself as the Constitution of the United States of America) apply to people living in the United States today?  Proponents of the social contract view would argue (and I think rightly so) that the vast majority of people living in the United States today are familiar with the Constitution and have agreed to follow its precepts, thereby voluntarily providing their consent and ensuring the continued legitimacy of the American political state.

Nevertheless, there exist a small number of people who hold negative views about the Constitution (or at least negative views about how the Constitution is currently constructed and/or functions) and therefore object to entering into any sort of contract that is predicated upon accepting and agreeing to obey the principles, rules, guidelines, etc. contained within that document.  Considering that the Constitution is a contract whose content was agreed to some 224 years ago by men who are no longer living, how can one who fails to agree to the terms and conditions outlined in that document remain obligated to obey the rules and regulations set forth by anyone or anything whose authority derives from the language contained therein?  Adherents to the social contract viewpoint answer this question by stating that explicit voluntary consent is not the only means of indicating one’s agreement to be bound by the precepts of a given contract.  If and/or when a person fails to voluntarily provide explicit consent to a document of this nature, that person’s tacit consent serves as the means through which a person takes on an obligation of obedience.  If, for example, a person refuses to agree to be bound by the precepts of the Constitution of the United States, but continues to live in the United States, obey the laws of the United States and receive various types of benefits from the United States government (such as Social Security or food stamps), that person has provided their consent to be governed by the Constitution via their physical actions.

Unfortunately for those who support a social contract standpoint, the concept of tacit consent seems to be a fairly shallow concept that fails to account for the motivations behind an individual’s actions and is therefore a sound counterargument only to the extent that one takes everything they or others do in a political context at face value.  Rather than observing that a person obeys the law and has therefore agreed to the contract that has been established in the territory in which they live, one should be asking why someone who has refused to voluntarily provide an explicit commitment to follow the law would then decide to follow it anyways.  To provide an answer to this question, one must remember that for a state to be able to effectively enforce the terms of a political contract, it must possess an overwhelming advantage over all other parties in terms of its ability to legitimately utilize deadly force.  Furthermore, a state must be viewed by a population as the only legitimate agent of deadly force in the area in which that population lives.  If a state is able to meet these two conditions, then the likelihood that a state will also possess undisputed political control over the area in which it is based increases exponentially.  If a state possesses undisputed political control over the area in which it is based, then all people who happen to live in a territory falling under that state’s jurisdiction can be subjected to that state’s use of deadly force.

This in turn means that even those who have not consented (or have refused to consent to) the contract that grants the state its monopoly (or near-monopoly) over the legitimate use of deadly force can still be subjected to such force.  Thus, if one is born into a territory where a contract has been agreed to prior to their birth (and a territory in which the two conditions outlined above have been met), one’s provision of consent or withholding of consent is irrelevant to the existence and maintenance of that contract.  After all, the possession of a monopoly (or near-monopoly) over the legitimate use of deadly force would enable the state in such a territory to successfully address any actions taken by any individual within that territory that are viewed as being contrary to or in defiance of the principles embedded within the current contract.  In other words, one’s ability to consent or refuse to consent to the terms and conditions of any contract they come into contact with is not a significant factor in their acceptance of such a contract.  Consequently, one who refuses to provide their consent to the contract that governs the territory in which they live, but still obeys the rules and guidelines contained in that contract cannot be viewed as providing any sort of consent (tacit or otherwise).  One has not provided their consent voluntarily because of their refusal to acknowledge the terms and conditions of the contract that governs the territory in which they live; one has not tacitly provided their consent because the preexistence of a state monopoly (or near-monopoly) over the legitimate use of deadly force precludes the possibility of consent being given in the first place (i.e. one’s ability to tacitly consent does not really exist).  Consequently, the legitimacy of a state whose foundation is based upon a social contract (such as the United States of America) is legitimate only insofar as its rules and regulations govern those who originally consented to the contract.